Gloria Fermin v. City of Danbury (2010)

RULING ON MOTION TO DISMISS (# 110.00)

On November 19, 2009, the plaintiff, Gloria Fermin, commenced this action against the defendant, the city of Danbury.   On January 25, 2010, the plaintiff filed the operative revised complaint, in which she alleges the following facts.   On or about December 16, 2007, at 5:30 a.m., the plaintiff was walking on the sidewalk in front of 19 Fairfield Ridge in Danbury, which was owned by the defendant, when she slipped and fell on ice covering the sidewalk.   The plaintiff's fall and resulting injuries were the result of the negligence and carelessness of the defendant and its agents, employees and servants.   The plaintiff is seeking money damages.

On July 21, 2010, the defendant filed the present motion to dismiss (# 110) on the ground that the court lacks subject matter jurisdiction because the plaintiff's notice is defective, thereby depriving the court of subject matter jurisdiction pursuant to General Statutes § 13a-149.   In its memorandum of law attached in support of its motion, the defendant argues that as a precondition to the court having subject matter jurisdiction the plaintiff, who is asserting liability against the defendant under § 13a-149, must give notice to the defendant pursuant to the statute.   Although the defendant concedes that § 13a-149 has a savings clause that can save an inaccurate notice, the plaintiff's notice in the present case, which was incorporated into her complaint, fails to meet the statutory notice requirements because she provided the plaintiff with erroneous information.   In her complaint, the plaintiff alleged that she fell on the icy sidewalk on December 16, 2007 at 5:30 a.m. However, in the notice, the plaintiff alleges that she fell at 5:30 p.m. Moreover, in her interrogatories, the plaintiff states that she sought treatment at Danbury Hospital on December 15, 2007.   The date and time are essential facts upon which the defendant would rely to conduct an investigation, particularly because the weather conditions could have varied from December 15 to December 16.   By providing the defendant with the incorrect date and time, the plaintiff has misled the defendant and compromised the defendant's ability to timely investigate the accident.   There were other inconsistencies between the notice and the complaint.   Specifically, although the complaint alleges that the plaintiff fell on the sidewalk in front of 19 Fairfield Ridge, the notice misidentified the accident location, stating that it occurred on the sidewalk in front of 19 Fairfield Road. There is no Fairfield Road in Danbury.   The plaintiff, however, resides on Fairfield Ridge, the actual location of the fall.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “[A]s a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements ․ The statute requires that the notice contain the following five essential elements:  (1) written notice of the injury;  (2) a general description of that injury;  (3) the cause;  (4) the time;  and (5) the place thereof ․ A plaintiff who fails to comply with these requirements cannot maintain a cause of action against a municipality.”  (Internal quotation marks omitted.)  Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003).

General Statutes § 13a-149 provides in relevant part:  “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair ․ No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation ․ No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

It is the plaintiff's contention that the savings clause built into the statute permits the plaintiff's notice to withstand this motion to dismiss.   When a notice fails to provide information respecting each of the required elements, it is deficient as a matter of law.   See Morico v. Cox, 134 Conn. 218, 222-23, 56 A.2d 522 (1947).  “The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim.   Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests.”  Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993).  “Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court.”  Morico v. Cox, supra, 134 Conn. 223.

In this matter the notice had three discrepancies, namely the date, December 15 versus December 16;  time, 5:30 PM versus 5:30 AM;  and place, Fairfield Road versus Fairfield Ridge.   The defendant has not accused the plaintiff of intending to mislead anyone and the court has no facts before it to support a basis for such a finding.   Further the court finds that the discrepancies are not so egregious as to provide insufficient information to allow the defendant to conduct an adequate investigation and the question of the adequacy of the notice is one for the jury and not the court.   See Pajor v. Wallingford, 47 Conn.App. 365, 378-79, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998).

The defendant's motion to dismiss is therefore denied.

Michael G. Maronich, Judge

Maronich, Michael G., J.